I wrote this paper for my political philosophy class in response to discussion about Human Rights law being better understood as goals for society instead of inherent rights to be enforced and protected. The paper defends Human Rights, specifically the UDHR and constructs a framework for understanding human rights law as enforceable rights in liberal philosophical tradition.
The Universal Declaration of Human Rights (UDHR) and its 30 articles marked historic cooperation between nations and cultures in the fallout from World War II. The 1948 Declaration defines universal human rights in writing for the first time in history and compels the protection of these rights by all states. ThIe articles protect humans from a number of transgressions by individuals and states while also listing benefits that citizens are entitled to, like education or adequate standards of living. The distinction between benefits and rights causes issue with liberal philosophers. Nozick and others argue that rights only exist as protections, otherwise they are unenforceable. As a result, the benefits UDHR requires appear to be goals or aspirations for human societies as opposed to rights that must be respected and revered.
This paper demonstrates how benefits articled in the UDHR should be understood as rights and not as aspirations or goals. First, I review various understandings of rights as illustrated in the UDHR and in the liberal tradition from John Locke and Robert Nozick. Second, I construct a hierarchy of rights as protections. Then, I examine benefits promised by the UDHR, arguing that upon the natural existence of these benefits in society, the right to equal treatment under the law guarantees equal access and quality of benefits for all. As a result, I establish the UDHR benefits as rights that must be protected by governments under the principle of equality. Finally, I review and respond to some potential criticisms of this model.
Fundamental to the UDHR is the principle of dignity. Respecting the dignity of human life requires following all of the articles outlined. The UDHR protects individuals from a number of transgressions (discrimination, slavery, torture, arbitrary arrest and exile, interference with privacy, and more) as well as grants a number of entitlements (fair trial, proven innocence, asylum, marriage, property, social security, education, health, and more). These rights fall into two categories – negative rights, something that an individual is protected from and positive rights, something to which an individual is entitled.
The UDHR does not fit cleanly into traditional liberal definitions of rights. Locke is the founder of modern liberal rights. Lockian rights begin with natural law, promulgated through reason. People, naturally free and equal at birth have a right to preserve themselves and have duties not to kill, steal from, or lord over others. Life, liberty, and property are foundational in Locke’s teachings – they exist in the state of nature without formal authority. (Locke, )
As humans enter societies, rights change. Nozick crafts a definition of rights as constraints, meaning, rights exist as protections from unjust action by states and individuals. He uses this definition to advocate for an ultraminimalist state in which the government is forbidden from taking from one person or group to give to another. Other conceptions of the state, he argues, use outcome reasoning. They conceive rights as requiring justice in societal and redistributive outcomes. Instead, he offers, rights can never be violated as means to any end, no matter how good those ends may be. (Nozick)
This creates a paradox if you look at modern understandings of rights. It supposes that there is not a distinct “common good” – any outcome that doesn’t violate someone’s rights on the way is a good one. It also means that we can’t have positive rights, meaning the right to something as opposed to protection from violation of a certain right. You cannot prevent a state from not supplying education or giving other benefits — this constraint seems at the least unreasonable and unenforceable.
From here I will argue for a constraint understanding of human rights in order to reconcile rights with goals of Human Rights Law. The foundation of a rights hierarchy begins with the liberal tradition of natural law and life, liberty, and property. These rights make the bottom layer of our pyramid, they exist without formal state or organization. Now, suppose as a social contract forms, individuals agree to put other limits on actions of states and individuals. Some of these negative rights are included in the UDHR, and they make up our second layer of rights. They include protection from slavery, torture, arbitrary arrest, and discrimination. Negative rights, when agreed upon by societies, fit well into our definition of rights as constraints. This gives the UDHR enforcement power when states and actors violate these provisions. Along with this protection from discrimination comes an implicit freedom to practice religion, and express opinion or belief without punishment for what those beliefs may happen to be. Entitlements to these freedoms are easily translatable into protection from discrimination because of them.
It becomes more complicated when discussing positive political rights. However, we can construct our way to government provided, benefit based rights using another foundational right, equality. Equality runs central to all of the rights discussed. The provision of equality can also be understood as prevention from unequal treatment under the law.
Suppose we have a society that decides and passes laws to provide education for its citizens. Let us also suppose that only some communities have access, that there are only public schools in wealthy areas. If the state decides to provide education because they recognize its important, then they must ensure that access and quality of education is equal among all individuals. Otherwise, they violate the negative right to equal treatment under the law. The means by which we arrived at an outcome with unequitable benefits is therefore unjust, because people were denied an education, and thus a right to equality. Once this reasonable expectation of the provision of a benefit exists, its denial constituties a violation of negative human rights.
The UDHR lists many more positive rights. Voting and citizenship are two. Once a nation makes some people citizens and voters, it has a duty to respect the dignity of other humans to be treated equally, and must provide that same status to all people living under that state. The same follows when we look at more obscure rights that may seem further from enforcement. For example, one of the late articles of UDHR ensures the right to rest and leisure and the right to join unions. When a reasonable expectation of these benefits emerges, it would be a rights violation to deny them to certain people or all people. In practice, goals for education, health, etc. function as rights because their provision is inextricably tied to the protection of equality. Furthermore, the means by which we arrive at an outcome where not everyone receives equal access or quality of benefit are unjust because they violate rights to equality and thus, rights to equal benefits, no matter the outcome. Protecting a negative right to equality and protecting the right to education are the same when a reasonable expectation of the benefit’s provision exists. The natural question is where do we draw the line of a reasonable expectation of the provision of a benefit. When benefits become institutionalized, say in the form of a school system, a cultural expectation, or a political promise or agreement, governments are obligated to ensure the equal treatment of persons under the institutional structure.
Criticism of the UDHR might go as follows. If the government can’t afford to provide education, then how can it be held as a violator of human rights? Non-interference in a certain public sphere should not be considered a violation of rights under constraints. International law shouldn’t mandate governments provide something the rest of the world thinks they should. It guarantees citizens the right to education, the right to healthcare, and various other entitlements intended at creating fairer outcomes. The UDHR presupposes a somewhat modern state that is able to provide all of these benefits.
This argument leaves a lingering question about requirements of states to provide benefits in the first place. This paper does not tackle this question. In this form, before state commitment to providing these goods, there is no obligation and a vision consistent with goals. The argument here focuses on the specific context, and the rather practical context, in which nations pledge to provide a benefit, either in the form of signing a document like the UDHR or using domestic legal authority, but fail to effectively follow through on this promise.
Under this framework our picture of human rights looks different, and it is grounded in foundations of natural, negative, political rights as constraints. Positive rights exist as societies do, and once governments and institutions exist and provide positive benefits to citizens. In practice the distinction in understanding UDHR as rights at not goals is important because often, government often aim to provide certain baseline benefits, and citizens come to expect the. When understood as rights, not as goals, it changes from the state should provide a benefit to the state must provide a benefit both equally and accessibly.
Locke, John. “The State of Nature and the Law of Nature.” Arguing about Political Philosophy. Ed. Matt Zwoliinski. New York: Routledge, 2009. N. pag 41. Print.
Nozick, Robert. “Libertarian Rights.” Arguing about Political Philosophy. Ed. Matt Zwoliinski. New York: Routledge, 2009. N. pag 173. Print.